Blog Scan

Orin Kerr has a post on whether Hudson v. Michigan extends to federal court cases. There are old Supreme Court cases providing a nonconstitutional exclusion remedy for knock-and-announce violations. Do they survive Hudson? Hudson's attorney David Moran also comments.

Lyle Denniston at SCOTUSblog has this post on the search of Congressman Jefferson's office.

Doug Berman at SL&P comments here on the tendency of Supreme Court Justices to drift "left," i.e., toward the defense side, during their tenure. He advances an interesting hypothesis that on the Supreme Court, the Justices see a skewed sample of the worst cases, which tends to affect their view.

1 Comment

Berman's theory is an interesting one, although I don't think that Scalia has "drifted left" with respect to Apprendi. I think that Scalia simply believes (as I do) that the jury trial right in the Constitution dictates the result in Apprendi. In addition, Scalia has framed the issues with respect to some of his "liberal" results in terms of distrust of government officers (i.e., judges), which is a conservative viewpoint.

I think that Berman is onto something. There is something that collectively has turned capital punishment jurisprudence in particular into a prolix and arcane code. Is it squeamishness produced by the thousand odd people that have been executed since 1976? Is it simply a fetish for technicalities that can be justified by the the incantation of "death is different"? Who knows? Today, we have the apotheosis of the abject silliness of the state of capital punishment jurisprudence.

Today, the Third Circuit tossed a death sentence on the basis of a Witherspoon violation. The violation was as follows: the trial judge asked the juror if she had "an opinion about the death penalty which would prevent you from following the court's instructions as to what penalty should be imposed?"

The juror replied:"I don't believe in the death penalty." The prosecutor moved to strike for cause, the defense did not object, and the juror was stricken. The Third Circuit reasoned that more should have been done to ascertain whether the juror could cast aside her opposition and follow the law.

Putting aside the correctness of the decision, that a death sentence could be tossed on such a trivial point (especially where the defense attorney did not object) is problematic. The wasted resources, the decrease in deterrence etc. etc. The Supreme Court has created this mess, and it should clean it up, their increased squeamishness because of all the cases they see notwithstanding.